US Remand Request to Provide BCI Access Pointless, EAPA Respondent Says

The government's request for a remand in an Enforce and Protect Act investigation to provide the parties with access to confidential business information is a "hollow" one since the parties have already gained access to this information via a judicial protective order at the Court of International Trade, plaintiff Phoenix Metal Co. said. Opposing the voluntary remand request from the U.S., Phoenix said the court should further explain CBP's decision to reject any information deemed to be "new factual information" (Phoenix Metal Co. v. United States, CIT # 23-00048).

Providing previously confidential information to the parties to the EAPA case in which CBP said Phoenix transshipped Chinese soil pipe through Cambodia to evade antidumping and countervailing duties "in no way cures the agency's due process violations" committed in the investigation, the brief said.

"The real harm was in depriving the target of the investigation of the confidential information in the allegation and throughout the proceeding," the brief said. "It is difficult to see how merely pasting a volume of previously withheld information on the record at the end of the investigation on remand would cure the due process violations."

Instead, the trade court should order the U.S. to respond to Phoenix's claims that CBP failed to provide timely notice for starting the investigation and violated congressional intent via its "belated disclosure of the pre-interim measure documents." Alternatively, if the court grants the remand motion, it should tell CBP to "not only make business confidential information available but also allow Phoenix a meaningful opportunity to submit information to rebut, correct, or clarify any record information," the brief said.

The U.S. asked for the remand in the wake of the U.S. Court of Appeals for the Federal Circuit's decision in Royal Brush Manufacturing v. U.S. In that decision, the appellate court said that CBP violated an EAPA respondent's due process rights by not providing it access to the confidential business information in the case (see 2307270038).